United States District Court, D. Nebraska
ERIC D. HAYES, Plaintiff,
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
E. STROM, Senior Judge
matter is before the Court on the defendant, Metropolitan
Property & Casualty Insurance Company's
(“Met” or “defendant”) motion in
limine (Filing No. 91). Met seeks to exclude
“from trial the proffered expert opinions and testimony
of Mark Malloy . . . as inadmissible under Fed.R.Evid. 702
and Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993), and its progeny.” (Id. at 1). The
matter has been fully briefed by the parties. See
Filing Nos. 92, 97, and 99. After review of the motion, the
parties' briefs, and the applicable law, the Court finds
October 17, 2014, the plaintiff, Eric D. Hayes
(“plaintiff” or “Hayes”), filed a
complaint in the District Court of Sarpy County, Nebraska,
alleging breach of contract and bad faith
denial/investigation (Filing No. 1, exhibit A). On
October 24, 2014, the action was removed from state court
under 28 U.S.C. §§ 1441 and 1446 (Filing No.
1). On December 24, 2014, plaintiff filed an amended
complaint (Filing No. 15). The plaintiff's
claims arise out of a homeowners insurance policy which was
issued to the plaintiff by the defendant. On January 24,
2013, the plaintiff's residence, located at 480 South 6th
Street, Springfield, Nebraska, was destroyed by a fire
(Id. at ¶ 6). Plaintiff alleges the “fire
was clearly a deliberate act, i.e., arson.”
(Id.) The plaintiff's residence was insured
under the Met homeowner's policy at the time of the fire
(Id. at ¶ 7).
March 29, 2013, Met advised the plaintiff that it would
investigate the plaintiff's claim arising out of the fire
(Id. at ¶ 11). Between March 29, 2013, until
approximately April 17, 2014, the plaintiff claims that he
complied with the defendant's investigation. See
Filing No. 23 at 2, Filing No. 25. On
August 5, 2014, the defendant sent a denial letter to the
plaintiff, cancelling the policy and enclosing a check for
all premiums paid with interest (Filing No. 15 at
¶ 67). The defendant also advised the plaintiff that a
check would be delivered to Springfield State Bank for
payment of the balance due on the mortgage (Id. at
February 20, 2015, the Court granted in part, and denied in
part, defendant's motion to dismiss (Filing No.
27). Applying “the statute and Chapter 44 of
the Nebraska Revised Statutes as a whole, ” the Court
concluded that plaintiff's breach of contract claim was
time barred under the twelve-month limitation period
(Id. at 6-7). However, the Court found the
twelve-month statute of limitations inapplicable to
plaintiff's bad faith tort claim (Id. at 7).
Thus, the Court granted defendant's motion to dismiss
with respect to plaintiff's breach of contract claim but
denied the motion with respect to plaintiff's bad faith
March 2, 2015, plaintiff filed a notice of an appeal (Filing
No. 28), a motion to stay the proceedings pending
appeal (Filing No. 29), and a motion to extend time
to file his interlocutory appeal (Filing No. 30).
The following day, on March 3, 2015, the Court granted
plaintiff's motion to stay the proceedings pending his
interlocutory appeal but denied plaintiff's motion to
extend time in which to file his appeal (Filing No.
31). On April 21, 2015, the United States Court of
Appeals for the Eighth Circuit dismissed plaintiff's
appeal for lack of jurisdiction (Filing No. 44). Two
days later, on April 23, 3015, defendant filed a motion to
vacate the Court's stay (Filing No. 45). The
Court granted defendant's motion to vacate the stay the
following day (Filing 46).
filed its answer on April 27, 2015 (Filing No. 47).
On May 15, 2015, defendant filed a motion for judgment on the
pleadings (Filing No. 49), and plaintiff filed a
motion to stay the proceedings pending a request for
permission to appeal (Filing No. 51).
Plaintiff's second motion to stay alleged that the Eighth
Circuit's dismissal for lack of jurisdiction “was
based upon the [p]laintiff appealing the [February 20, 2015]
Memorandum and Order without any specific requisite finding
[from the Court] that the matter could be appealed.”
(Filing No. 52 at 1). The plaintiff thus sought this
Court's “permission to appeal to the Eighth Circuit
Court of Appeals or, in the alternative, for the Court to
amend its [February 20, 2015] Memorandum and Order . . . to
include the required permission or statement allowing appeal
. . . .” (Id. at 2).
2, 2015, the Court denied both plaintiff's motion to stay
and plaintiff's motion for permission to appeal or, in
the alternative, for entry of an amended order granting
permission to appeal (Filing No. 56). The Court
specifically noted that “the Eighth Circuit notified
the plaintiff on two occasions that the plaintiff needed to
request permission to appeal from the district court . . .
plaintiff failed to file a request for permission to appeal.
As a result, the Eighth Circuit dismissed the plaintiff's
appeal for lack of jurisdiction.” (Id. at 2)
(internal cites omitted).
13, 2015, the Court denied defendant's motion for
judgment on the pleadings (Filing No. 57). On
October 27, 2016, defendant filed the instant motion seeking
an order to exclude plaintiff's expert's opinions and
testimony under Fed.R.Evid. 702 and Daubert (Filing
Court's Third Amended Final Progression Order, issued on
October 11, 2016, like each of the previous progression
orders, provides for a non-jury trial (Filing No.
90). Therefore, the Court finds that defendant's
motion in limine (Daubert) (Filing No. 91)
should be denied without prejudice to reassertion at trial.
“The district court's ‘gatekeeping
function' under Daubert ensures that expert
evidence ‘submitted to the jury' is
sufficiently relevant and reliable, Bonner v. ISP
Technologies, Inc., 259 F.3d 924, 929 (8th Cir. 2001)
(emphasis added), but ‘[t]here is less need for the
gatekeeper to keep the gate when the gatekeeper is keeping
the gate only for himself, ' United States v.
Brown, 415 F.3d 1257, 1269 (11th Cir. 2005). Similar
reasons support less stringent application of
Daubert in bench trials. See Charles Alan
Wright, Victor James Gold, 29 Fed. Prac. & Proc. Evid.
§ 6266, n.90.2 (2010), and cases cited. The ‘usual
concerns of the [Daubert] rule -- keeping unreliable
expert testimony from the jury -- are not present in such a
setting.' Metavante Corp. v. Emigrant Sav. Bank,
619 F.3d 748, 760 (7th Cir. 2010).”
City of Lincoln, Neb. v. Windstream Nebraska, Inc.,
No. 4:10CV3030, 2011 WL 7145632, at *1 (D. Neb. Aug. 23,
2011) (quoting In re Zurn Pex Plumbing Products Liability
Litigation644 F.3d 604, 613 (8th Cir.2011)). See
also Penske Truck LeasingCo., L.P. v. Rion,
LLC, No. 8:07CV294, 2008 WL 4540178, at *2 (D. Neb. Oct.
7, 2008); S.E.C. v. Guenthner, 395 F.Supp.2d 835,
843 n.3 (D. Neb. 2005). Therefore, defendant's motion
will be denied without prejudice at this time. Accordingly,
IT IS ORDERED that defendant's motion in limine to